Neighbors take city to court over school project

Date: 1/11/2012

Jan. 11, 2012

By Debbie Gardner

Assistant Editor

WESTFIELD — Neighbors concerned about the construction of a new school on the site of the former Ashley Street School have taken their complaint to a higher authority.

Attorney Mark A. Tanner confirmed for Reminder Publications that he filed a complaint in Hampden Superior Court on Dec. 15, 2011 against the City of Westfield, the city’s Zoning Board of Appeals (ZBA) and its members and Mayor Daniel Knapik on behalf of city residents Ernest Simmons and Virginia Smith. The plaintiffs are objecting to a special permit granted by the ZBA to allow the school to be built on what they consider an under-sized lot.

“It’s a complaint pursuant to Chapter 40A, Section 17 of the Massachusetts Zoning Act,” Tanner explained. “The municipality applied for the special permit to construct the structure into the side yard [of the adjoining St. Peter & St. Casimir Catholic Church] so they had to get zoning relief to get that.”

He added that the two plaintiffs “are really concerned as to whether or not this school is a good fit for this neighborhood, and whether you want to aggregate schools in the manner in which it is being proposed [in this project].”

The complaint, as filed with the court, states that the ZBA heard the city’s application for a “dimensional special permit” on Nov. 16, 2011 while conducting a public hearing on the matter that date. According to the documents filed by Tanner, “during the public hearing, the Zoning Board of Appeals restricted the nature and duration of the public comment period despite the fact that the public’s proposed comments were germane to the Zoning Board of Appeals decision making process.”

The complaint states that the ZBA approved the special permit that evening, and then, “without public notice or comment” met on Nov. 21, 2011 to amend its decision to re-approve the permit “finding that other statutory criteria had been met by the application.”

The ZBA gave final approval to the dimensional special permit on Nov. 29,2011.

In a Reminder Publications story that appeared on Dec. 7, 2011, Michael Parent, chairman of the ZBA, explained that the board unanimously OK’d the special permit on Nov. 16 after reviewing three of the four conditions necessary for approval. However, shortly after that meeting “one of the board members was uncomfortable putting down something not covered [by the board’s discussion]” in their recommendation to the Planning Board, and he consulted with the city’s Legal Department for advice on how to add information on the fourth condition to the decision.

Parent said the board originally believed the fourth condition, which involved sidewalks in the site plan and the “adequate and appropriate circulation of pedestrians” between the proposed school and the parking lot at St. Peter & St. Casimir Catholic Church — which the School Department plans to rent for faculty use — “was the perview of the Planning Board.”

Parent said the city’s Law Department indicated that the ZBA needed to approve all four conditions for the special permit, and the board reached an agreement on that stipulation on Nov. 29, 2011.

During the interview for the Dec. 7 story, Parent confirmed that there were neighborhood residents who spoke against the permit at the Nov. 16 meeting, citing the size of the school and its potential impact on the neighborhood. He said that though the board listened to the concerns, their only area of jurisdiction involved evaluating and granting permission for the dimensional special permit.

The complaint charges that the approval of the city’s application for the dimensional special permit was “arbitrary, capricious and in violation of the law,” and asks the court either remand the decision back to the ZBA for a second decision or declare that the city of Westfield “is not entitled to the permit it seeks in this issue as a matter of law.”

Tanner said copies of the complaint were served to the city and members of the ZBA “the same day it was filed.” He said he believed his office had received word from City Solicitor, Attorney Susan Phillips, that her department would be requesting an extension before responding to the complaint.

Just prior to press time, Phillips said she had “no comment” regarding whether or not the city would be responding to the complaint.

Tanner said with the filing of the complaint, the issue became “like any civil litigation ... [the city] can answer, there is time for discovery, and hopefully, there is a trial.”

Tanner explained that the discovery phase of litigation involves examining the facts in the other side’s case. If the complaint goes all the way to a trial, he said it could be “a couple of years from now.” He added that a trial was not the only outcome, however.

“The parties could reach an agreement on something, there could be arbitration, there are any number of ways that this could be resolved,” he said.

Knapik acknowledged that he was aware two neighbors of the proposed school project had filed a complaint against the ZBA.

“Obviously they have a right to appeals [the ZBA’s decision].” Knapik said, adding that the city was “waiting to hear what the court had to say” before moving on the complaint.

“The city stands by the ZBA’s decision and will continue with its project to locate the school on Ashley Street,” he said.